Mawdesley v the Owners of Careening Gardens [2012] WADC 103
Facts:
On 18 September 2005, the plaintiff, in his capacity as secretary of a strata company, was on the roof of a block of units conducting an inspection to establish the source of a leak into one of the units.
In doing so, he fell through a polycarbonate sheet skylight, suffering permanent injuries and incomplete paraplegia. The inspection was being carried out at the request of the strata company Chairman. The plaintiff sued the defendant strata company for damages.
The Chairman, who occupied one of the units himself, had asked the plaintiff to attempt to identify the source of the leak before calling a plumber. The plaintiff claimed the defendant owed him a duty of care to warn him of the hazard created by the skylight. He alleged that it was a danger known to the strata company but not known to him. The defendant argued that the plaintiff had voluntarily assumed the risk associated with going onto the roof.
Decision
The court found that the Chairman was aware of the existence of the skylight and had a duty, on behalf of the strata company, to warn the plaintiff. His failure to do so meant that the defendant was primarily liable in negligence.
The court also had to consider contributory negligence and found that there was a degree of risk in climbing onto the roof. The plaintiff therefore had a duty to ensure that the inspection was carried out safely. As he could not distinguish the skylight from the rest of the roof, the particular danger it presented was not reasonably foreseeable.
However, the court went on to consider the wider issue of whether the plaintiff was negligent for failing to consider more carefully the overall risks associated with the task, particularly given his skill and experience. His job at the time was particularly relevant and included preparing job safety assessments for structures, including those with skylights. He had somehow overlooked applying his own procedures in such matters and his contributory negligence was therefore assessed at 50%. He was awarded damages of over $700,000.
Conclusion
Although the decision is of particular relevance to strata managers, it is of more general interest because of the substantial finding of contributory negligence. Of particular note is that neither the breach of duty by the defendant, nor the contributory conduct of the plaintiff, were particularly serious although the consequences clearly were. In such a situation, the comparison of the respective breaches, being at the lower end of the scale on both sides, may have influenced the assessment of their relative contributions.
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